The February 2010 issue of Cal. Comp. Cases is now available on lexis.com. Lexis subscribers can link to the cases below.
California Compensation Cases, Vol. 75 No. 2, February 2010
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review
CONTENTS OF THIS ISSUE
Appellate Court Compensation Cases
Elliott v. W.C.A.B. (1st--A125585), 75 Cal. Comp. Cases 81
Medical Treatment--Spinal Surgery--When applicant's treating physician recommends spinal surgery, defendant must either authorize that surgery or submit treating physician's recommendation to defendant's utilization review process; if utilization review denies request for spinal surgery, defendant must then object to treating physician's recommendation within 10 days of receipt of treating physician's recommendation
Lara v. W.C.A.B. (2nd--B214234), 75 Cal. Comp. Cases 91
Employment Relationships--Independent Contractors--Applicant gardener was, as matter of law, independent contractor, not employee, at time he sustained work-related injury, when applicant sustained injury while pruning bushes for diner, applicant testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years, applicant was hired twice in space of 12 months by wife of diner's manager to trim bushes along diner's roofline, while trimming bushes second time applicant fell from roof, and factors outlined in Borello, especially fact that defendant did not have right to control manner and means by which applicant did job for which he was hired, indicated that applicant was independent contractor and, thus, not entitled to workers' comp benefits
Appellate Court Cases Not Originating With Appeals Board
Acosta v. Sacramento County Employees' Retirement System (3rd--C061089), 75 Cal. Comp. Cases 109
Public Employees--Disability Retirement--Court of Appeal affirmed denial by county retirement system board (affirmed by trial court) of applicant's request for service-connected disability retirement under Gov C § 31720, when county's retirement system board denied request because it found that it could not determine whether applicant was permanently incapacitated from performing her duties as county public health aid because she had not yet undergone recommended multi-disciplinary pain management program for back and psychological problems from 1993, 1996, and 2001 industrial injuries and had, therefore, not reached maximum medical improvement; court of appeal found that substantial evidence supported retirement board's findings and that it was not error for trial court to reject testimony from applicant's VR counselor
People, The v. Alvarez (4th--D053339), 75 Cal. Comp. Cases 118
Insurance--Anti-Fraud Provisions--Court of Appeal, affirming trial court's judgment after jury convicted applicant prison worker of five counts of workers' comp fraud under Ins C § 1871.4(a)(1) and one count under Pen C § 550(b)(3) related to applicant's 2/20/2002 industrial injury, held that trial court did not make errors by (1) giving jury modified version of jury instruction CALCRIM No. 3407 about applicant's defenses (or, if error, this was harmless error), (2) giving jury instruction CALCRIM No. 220 (all jury instructions, taken together, gave jury correct legal standards to decide if there was reasonable doubt as to each element of criminal statutes), and (3) not holding hearing after jury member sent note to trial court that gave juror's perception that other jurors who were union members received "freebie" vacation for serving on jury, since parties waived further inquiry of juror when jury returned verdict, and, even absent waiver, note did not show any juror misconduct
People, The. v. Waterman (4th--D053479), 75 Cal. Comp. Cases 129
Insurance--Anti-Fraud Provisions--Court of Appeal held that substantial evidence supported jury conviction of applicant car salesman on two counts of workers' comp fraud under Ins C § 1871.4(a)(1) and one count of making false claim under Pen C § 550(a)(1), when Court of Appeal found that applicant sustained industrial injury on 2/29/2004 and made statements about his physical limitations in his deposition and in telephone conversation with insurer's claims adjuster, and that statements were false and material, based on surveillance video of applicant's activities and on other reasonable, credible, and solid evidence
Digests of WCAB Decisions Denied Judicial Review
Editorial Board members Hon. David Hettick, Robert G. Heywood, Hon. Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.
Chitsaz v. W.C.A.B. (4th--G042943), 75 Cal. Comp. Cases 138
Discrimination--Lab C § 132a--WCAB, reversing WCJ's finding, held that defendant/doctor did not violate Lab C §132a by removing applicant's personal possessions from apartment provided to applicant by defendant during his employment as bodyguard/assistant, when WCAB found that applicant repeatedly admitted under oath that defendant's alleged acts of discrimination were due to matters unrelated to his 3/2/2000 industrial gunshot injury or his workers' comp claim, and that, consequently, applicant failed to set forth prima facie case of Lab C § 132a violation under standard in Department of Rehabilitation v. W.C.A.B. (Lauher)
City of Los Angeles v. W.C.A.B. (Bonner) (2nd--B216883), 75 Cal. Comp. Cases 144
TD--104-Week Limitation--WCAB held that salary in lieu of TD benefits that defendant paid to applicant under Lab C § 4850 was not payment of TD for purpose of computing 104-week limitation on TD under Lab C § 4656(c)(1), when WCAB found that applicant city firefighter sustained admitted injury AOE/COE to low back and right and left heels on 2/13/2005, that defendant paid Lab C § 4850 benefits from 2/13/2005 through 2/10/2006 and then TD benefits from 3/10/2006 through 2/8/2007, and that AME indicated that applicant was TTD from 8/23/2007 and continuing, for surgery and recovery on industrial basis, and WCAB awarded additional TD from 8/23/2007 and continuing
Stipulations--WCAB held that parties stipulated in minutes of trial that defendant paid applicant Lab C § 4850 benefits from 2/13/2005 through 2/10/2006, and that defendant could not be relieved of this stipulation classifying benefits by later contending that benefits paid in that period of time were actually TD benefits
City of Los Angeles v. W.C.A.B. (Travers); Travers v. W.C.A.B. (2nd--B218053, B218077), 75 Cal. Comp. Cases 148
Cumulative Trauma Injury--Date of Injury--WCAB held that, based on parties' stipulation, applicant suffered industrial injuries to her psyche, gastrointestinal system (irritable bowel syndrome), and in form of fibromyalgia during period 11/91 through 5/2000, and that applicant's "date of injury" for her cumulative trauma was 2/4/97 pursuant to Lab C § 5412 and State Compensation Insurance Fund v. W.C.A.B. (Rodarte), since this was earliest date on which there was clear substantial evidence that applicant had requisite knowledge of, and disability associated with, industrial continuous trauma injury
PD--Rating--Apportionment--WCAB held that applicant's industrial injuries to her psyche, gastrointestinal system (irritable bowel syndrome), and in form of fibromyalgia during period 11/91 through 5/2000, caused 95-percent PD, after 15-percent apportionment to "other factors" pursuant to Lab C § 4663, based on rating formulated by DEU rater utilizing 1997 Schedule for Rating Permanent Disabilities, when rater described alternative methods of rating applicant's PD, including combining disabilities involving different body parts, rated subjective factors of applicant's fibromyalgia since work restriction for fibromyalgia is PTD, and utilized Multiple Disabilities Table to maximize applicant's PD rating
County of Los Angeles v. W.C.A.B. (Barnett) (2nd--B216700), 75 Cal. Comp. Cases 155
PD--Apportionment--Overlap--WCAB affirmed WCJ's finding that there was no basis under Lab C § 4664 to apportion 24 percent of PD awarded to applicant/deputy sheriff for cumulative trauma to spine during period 3/19/94 through 2/2005, when WCAB found that defendant failed to prove overlap between cumulative injury and specific spinal injury sustained by applicant on 3/10/94 for which he was previously awarded 31-percent PD, that PD caused by cumulative injury was determined using AMA Guides and PD caused by specific injury was rated under 1997 Schedule for Rating Permanent Disabilities, and that, pursuant to AME's opinion that different rating standards could not be compared, it was inappropriate to simply subtract percentage of PD awarded for specific injury from percentage awarded for cumulative trauma
County of Sacramento v. W.C.A.B. (Chimeri) (3rd--C063553), 75 Cal. Comp. Cases 159
PD--Rating--Apportionment--WCAB held that applicant/probation assistant with 10/9/96 industrial injuries to back, lower extremities, and psyche was unemployable and, therefore, 100-percent PD, because of his use of prescription pain medication prescribed for his industrially-related complex regional pain syndrome and that, while opinion of orthopedic QME constituted substantial evidence regarding apportionment of applicant's low back disability to prior spine injuries, orthopedic QME did not address applicant's disability as it related to his use of prescription medications to relieve symptoms of his complex regional pain syndrome caused by his lower extremity injuries
PD--Decrease in Compensation--WCAB held that defendant was not entitled to decrease in PD indemnity awarded to applicant/probation assistant with 10/9/96 industrial injuries to back, lower extremities, and psyche pursuant to Lab C § 4056 for applicant's refusal to participate in detoxification program as recommended by QME, when WCAB found that applicant was rendered PTD based on his unemployability resulting from use of pain medication to relieve symptoms of industrially-related complex regional pain syndrome, and that defendant did not meet burden of proving that applicant's decision not to participate in detoxification program was unreasonable so as to justify reduction in PD indemnity
Merritt v. W.C.A.B. (2nd--B217595), 75 Cal. Comp. Cases 164
Reconsideration--Time for WCAB to Act on Petition--WCAB, relying on Shipley v. W.C.A.B., found that its failure to act on defendant's petition for reconsideration within 60 days from date of filing should not result in automatic denial of petition pursuant to Lab C § 5909, when WCAB's failure to timely act resulted from its own error in calculating date by which it was required to issue decision, causing decision to be issued four days late, and WCAB did not believe that defendant should be precluded from having its petition (challenging WCJ's finding that applicant was 100-percent PD by 11/19/2002 injuries) considered on its merits due to WCAB's error
Old Republic Insurance Co. v. W.C.A.B. (Bennett); Pacific Employers Insurance Co. v. W.C.A.B. (Bennett) (1st--A126663, A126616), 75 Cal. Comp. Cases 168
Contribution--Statute of Limitations--WCAB held that defendant self-insured employer's DOR on issue of contribution against co-defendants for benefits owed to applicant with cumulative injury to her low back through 2/26/2003 was sufficient, for purposes of Lab C § 5500.5(e), to "institute proceedings" within one year of date when Stipulated Award was issued, and that defendant's failure to timely file Petition for Contribution did not bar its contribution claim
Pacific Connections of California v. W.C.A.B. (Gomez) (4th--E049280), 75 Cal. Comp. Cases 173
CIGA--General and Special Employers--Other Insurance--WCAB held that special employer's insurance carrier was liable for benefits owing to applicant/warehouse worker with 1/30/2002 injury to lumbosacral spine, and that CIGA, on behalf of general employer's insolvent carrier, had no liability pursuant to Ins C § 1063.1(c)(9), when WCAB found that general and special employers had joint and several liability for applicant's benefits, that there was no evidence of valid, enforceable agreement between general and special employers under Lab C § 3602(d) indicating that general employer would provide workers' comp for special employees, that Ins C § 11663 did not apply since CIGA is not insurance company, that special employer's workers' comp insurance policy did not expressly exclude special employees from coverage, and that special employer's insurance constituted "other insurance" available to applicant under Ins C § 1063.1(c)(9)
Patterson v. W.C.A.B. (4th--G042948), 75 Cal. Comp. Cases 177
S&W Misconduct by Employer--WCAB held that employer's conduct was not S&W misconduct under Lab C § 4553, when WCAB found that applicant truck driver/maintenance mechanic sustained injury AOE/COE on 9/26/2005 to multiple body parts while attempting to repair malfunctioning pump on asphalt storage tank, that tank was metal, 12 feet high, approximately 18-20 feet wide, and dome shape, that applicant climbed on top of tank to repair pump, fell from top of tank head first, landed on concrete 12 feet below, and sustained serious injury, that no fall protection system was in place, that applicant was not wearing safety harness, that employer received DOSH citation for failure to provide fall protection, that applicant testified he had walked across top of tank many times (perhaps as many as 50 times) and knew of no one else who had fallen off tank, that applicant contended employer's conduct in failing to provide fall protection devices was S&W misconduct, that conduct did not rise to level of being intentional act, quasi-criminal act, or wanton reckless disregard of condition that would likely result in serious injury, and that employer's conduct was at worst gross negligence
Ramirez v. W.C.A.B. (2nd--B217653), 75 Cal. Comp. Cases 181
TD--Petitions to Terminate Liability--WCAB held that, pursuant to 8 CCR § 10462, defendant was not required to file petition to terminate payment of TD indemnity in order to cease payments to applicant with 2/4/2002 injuries to right wrist and right upper extremity after treating physician and AME declared applicant's condition to be P&S on 3/3/2005, notwithstanding prior stipulation that TD payments would not cease until petition to terminate was filed, when defendant sent applicant notice informing applicant that it was discontinuing TD benefits, based on P&S date, and asserting credit for overpayment of TD; WCAB found that WCJ properly exercised her discretion in allowing defendant credit for all PD advances paid under Lab C § 4909
Terrones v. W.C.A.B. (2nd--B218313), 75 Cal. Comp. Cases 185
TD--104-Week Limitation--Exceptions--WCAB held that applicant did not prove Lab C § 4656(c)(2) exception to 104-week limitation on TD for 7/26/2006 industrial injury, when applicant contended that defendant delayed authorization for hip replacement surgery and that delay was exception to 104-week limitation, when WCAB found that applicant did not show delay or that exception applied even if medical treatment was delayed; applicant cashier clerk received TD for injury AOE/COE to left hip and spine on 7/21/2006 from slip and fall over box
TD--104-Week Limitation--Exceptions--WCAB held that applicant did not prove Lab C § 4656(c)(3)(C) amputation exception to 104-week limitation on TD for 7/26/2006 industrial injury, when WCAB found that hip replacement surgery was not amputation under that statute
WCJs--Orders--WCAB held that WCJ did not err in rescinding interim findings and that award and rescission were appropriate under 8 CCR § 10859, because there was delay in delivery of documents to WCJ under EAMS system and because WCJ found need to clarify record on issue of whether defendant delayed authorizing hip surgery for applicant
Tokio Marine & Fire Insurance Co. v. W.C.A.B. (Lopez) (2nd--B217135), 75 Cal. Comp. Cases 188
CIGA--General and Special Employers--Other Insurance--WCAB held that special employer's insurance carrier was liable for benefits owing to applicant with 6/8/99 injuries to neck, upper back, left shoulder, low back, and head, and that CIGA, on behalf of general employer's insolvent carrier, had no liability pursuant to Ins C § 1063.1(c)(9), when WCAB found that general and special employers had joint and several liability for applicant's benefits, that there was no evidence of valid, enforceable agreement between general and special employers under Lab C § 3602(d) indicating that general employer would provide workers' comp for special employees, that Ins C § 11663 did not apply, that there was no valid endorsement for exclusion of special employees from coverage in policy issued by special employer's carrier, and that special employer's insurance constituted "other insurance" available to applicant under Ins C § 1063.1(c)(9)
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